AVIATIONREGULATION OF INTRASTATE AIR NAVIGATION: PROPOSAL FOR REFERRAL TO COMMONWEALTH BY STATE PARLIAMENTS OF MATTERS WITH RESPECT TO INTRASTATE AIR NAVIGATION: EFFECT WHERE ONLY SOME STATE PARLIAMENTS REFER POWER: WHETHER A STATE PARLIAMENT MAY UNILATERALLY REVOKE A REFERRAL
CONSTITUTION s 51 (xxxvii): COMMONWEALTH POWERS ACT 1943 (Vic)
I refer to your memorandum No. 192/101/1045 of 24th July requesting my advice on certain questions arising out of the proposal that the State Parliaments should refer matters with respect to intra-state air navigation to the Commonwealth Parliament.
The questions on which my advice is sought are:
(a) Whether in the event of any State Parliaments passing such legislation, the transference would be effective as regards those States which had passed the legislation even though other States may not have similarly referred matters to the Commonwealth.
(b) Whether in the event of any State Parliament so referring matters to the Commonwealth, such reference could be revoked by unilateral action of the Parliament of the State concerned, i.e., whether the State Parliament could constitutionally revoke the reference which it had previously made.
In my opinion the answer to the first question is clearly in the affirmative. I should, however, perhaps mention that it would be possible for a State law referring the matters to contain a provision making its operation dependent on the passage of similar legislation by one or more or all of the other States. In this event the legislation of the first-mentioned State would not confer any power on the Commonwealth unless similar legislation was passed by the other State or States. Such a provision is contained in the Commonwealth Powers Act 1943 of the State of Victoria.
The second question is one which is not covered by authority, and on which opinions of eminent lawyers have disagreed. My own opinion, however, is that the answer is in the affirmative. This view was expressed in a joint opinion of the Attorney-General (Dr. H.V. Evatt), Sir Robert Garran, the former Solicitor-General (Sir George Knowles) and myself given in 1942 in connexion with the proposed references by the States which were under consideration at that time.1
[Vol. 37, p. 190]